No Single “Standard Rate” Under Hayes: Sixth Circuit Endorses Flexible Benchmarks (Including EAJA Cap and Counsel’s Stated Rate) for § 406(b) Fee Review

Introduction

In Debra Tucker v. Commissioner of Social Security, No. 24-5873 (6th Cir. May 7, 2025), the Sixth Circuit addressed how district courts should evaluate contingency-fee petitions under 42 U.S.C. § 406(b) in Social Security disability cases. The published decision affirms a reduced fee award and, importantly, clarifies that the “standard rate” comparator described in Hayes v. Secretary of Health & Human Services, 923 F.2d 418 (6th Cir. 1990), is not confined to a single methodology. District courts may consider multiple reference points—including the Equal Access to Justice Act (EAJA) statutory rate and counsel’s own documented hourly rate—when applying the Hayes “floor” and assessing whether a contingency fee would be a windfall.

The appellant, a prevailing Social Security claimant nominally represented by her attorney (the real party in interest), challenged the district court’s fee reduction from a requested $31,205.43 (25% of past-due benefits) to $17,400, an amount the court derived by imputing a $500 hourly rate to counsel’s 34.8 hours of court time. On appeal, counsel argued that the district court (1) over-emphasized an hourly-rate (lodestar-like) analysis instead of giving primacy to the contingency agreement, (2) misapplied Hayes by failing to identify a proper “standard rate,” and (3) insufficiently justified its windfall finding given counsel’s expertise, the case’s complexity, and the result achieved.

The Sixth Circuit affirmed, offering a detailed framework for future § 406(b) fee evaluations and resolving a recurring debate within the circuit over what constitutes the relevant “standard rate” for Hayes purposes.

Summary of the Opinion

The court held that:

District courts must start with the contingency-fee agreement and then test it for reasonableness under Gisbrecht v. Barnhart, 535 U.S. 789 (2002). They may treat the effective hourly rate as a primary focus in that reasonableness check, so long as it is not the only consideration.
The Sixth Circuit’s pre-Gisbrecht framework remains intact: a 25% contingency is not per se reasonable but carries a rebuttable presumption of reasonableness. Courts may reduce fees for improper conduct, ineffective representation, or to avoid a windfall arising from a large award or minimal effort.
Under Hayes, the “per se reasonable” floor—effective rate less than twice the “standard rate”—does not lock courts into a single definition of “standard rate.” It may be informed by multiple benchmarks, including the EAJA statutory rate and counsel’s own stated hourly rate, especially where the fee proponent offers no persuasive evidence of the prevailing market rate for comparable work in the relevant market.
Because counsel’s effective rate ($896.71/hour) far exceeded twice even the higher comparator rate she documented ($236.25), and because the district court also considered the case’s modest complexity, an unopposed remand, routine litigation hours, and counsel-initiated delay, the reduction to a $500 imputed hourly rate was within the court’s discretion.

Applying “highly respectful review” to the district court’s discretionary fee ruling, the Sixth Circuit affirmed the $17,400 § 406(b) award (subject to the EAJA offset/refund).

Factual and Procedural Background

Debra Tucker applied for Title II disability insurance benefits in 2018. After multiple administrative denials, she filed in federal court. In 2023, the district court remanded for further administrative proceedings, granting an unopposed motion by the Commissioner. The court awarded counsel $7,500 in EAJA fees and $402 in costs for 34.8 hours of district court work.

On remand, an ALJ issued a fully favorable decision, awarding $124,821.70 in past-due benefits. Counsel sought § 406(b) fees equal to 25% of past-due benefits—$31,205.43—less the EAJA award. The Commissioner took no position on the amount, appearing instead in a trustee-like capacity to safeguard the claimant’s interests. The district court concluded that the requested fee would produce an excessive effective hourly rate and risked a windfall, and awarded $17,400 (imputing $500/hour). It denied reconsideration when counsel proposed a $650/hour imputed rate. Counsel appealed.

Analysis

Precedents Cited and Their Influence

Gisbrecht v. Barnhart, 535 U.S. 789 (2002)
Gisbrecht instructs courts to begin with the contingent-fee agreement and then conduct an independent reasonableness check under § 406(b). While rejecting a strict lodestar regime in this context, Gisbrecht nonetheless authorizes consideration of the attorney’s hours and standard rates as part of the reasonableness inquiry. Tucker applies Gisbrecht faithfully: the district court acknowledged the contract, then tested it by examining the effective hourly rate and other factors (difficulty, delay, results).
Rodriquez v. Bowen, 865 F.2d 739 (6th Cir. 1989) (en banc)
Rodriquez, cited approvingly in Gisbrecht, provides that 25% contingency agreements are not per se reasonable but enjoy a rebuttable presumption of reasonableness. It also identifies two bases for reductions: improper conduct/ineffectiveness or windfall (large award/minimal effort). Tucker confirms Rodriquez remains good law in the Sixth Circuit post-Gisbrecht.
Hayes v. Secretary of Health & Human Services, 923 F.2d 418 (6th Cir. 1990)
Hayes established a “floor”: if the effective hourly rate is less than twice the “standard rate” for such work in the relevant market, the fee is per se reasonable; if equal to or greater than twice that rate, the fee may still be reasonable but is subject to rebuttal. Tucker’s key contribution is to clarify that Hayes did not prescribe a single methodology for identifying the “standard rate.” The court endorsed a flexible approach: district courts may consider the EAJA statutory cap and counsel’s own stated rate, particularly when counsel offers no market evidence.
Royzer v. Secretary of Health & Human Services, 900 F.2d 981 (6th Cir. 1990)
Royzer permits converting contingency fees into implied hourly rates as part of the reasonableness calculus but warns that contingent representation entails risk, and high effective rates alone do not compel reductions. Tucker applies this nuanced approach: the district court used the effective rate as a central data point, but not the only one, and tied its reduction to additional factors.
Hayes v. Commissioner of Social Security, 895 F.3d 449 (6th Cir. 2018) and Lasley v. Commissioner of Social Security, 771 F.3d 308 (6th Cir. 2014)
These post-Gisbrecht decisions reaffirm the continuing vitality of Rodriquez and Hayes. Tucker relies on them for the standard of review and to confirm that district courts may consider hours and rates, but must articulate reasons beyond a bare hourly-rate comparison.
Glenn v. Commissioner of Social Security, 763 F.3d 494 (6th Cir. 2014)
Provides the abuse-of-discretion framework: reversal is warranted only for clearly erroneous fact-finding, legal error, or reliance on an incorrect standard. Tucker applies this deferential standard to affirm.
Steigerwald v. Commissioner of Social Security, 48 F.4th 632 (6th Cir. 2022)
Sets out the relevant Gisbrecht factors and confirms district courts should consider difficulty, character of representation, delay, and results. Tucker emphasizes that the district court did so.

Legal Reasoning

The Sixth Circuit addressed three central objections.

Starting Point and Focus of the Analysis
The court rejected counsel’s claim that the district court improperly used a lodestar approach. The district court began with the contingency agreement, acknowledged Gisbrecht’s directives, and then examined reasonableness. It computed the implied rate ($896.71/hour) and evaluated the fee against other case-specific factors: the case’s straightforward issues, an unopposed remand, an extension sought by counsel, and the overall hours (34.8) falling within “average” for Social Security appeals. This balanced analysis conforms to Gisbrecht, Rodriquez, and Royzer: effective hourly rate may be a focal point, but not the sole basis.
The “Standard Rate” Under Hayes
Counsel argued that Hayes requires use of the prevailing market rate and that district courts err by relying on the EAJA statutory cap or an attorney’s own stated rate. The panel disagreed. Hayes sets a per se reasonableness “floor,” but does not constrain the evidentiary route for identifying the “standard rate.” Tucker underscores that district courts may consult multiple benchmarks—including the $125 EAJA cap and counsel’s documented rate—especially where the fee proponent offers no competent evidence of prevailing market rates for Social Security litigation in the relevant market. The court even noted that “standard rate,” in ordinary usage, can be a rate established by law, lending support to considering the EAJA cap as one data point. Crucially, the panel did not declare the EAJA cap to be the standard rate; it approved using it, alongside other indicators, to illuminate reasonableness in the absence of better proof.

Here, the district court considered both the EAJA cap and the $236.25 rate counsel herself listed on her time sheet and concluded that, even against the higher of those figures, the implied rate of $896.71 was well above twice the comparator (i.e., above the Hayes floor) and therefore not per se reasonable. Given that counsel presented no affidavits or other evidence establishing a higher prevailing market rate in the Eastern District of Kentucky, the court acted within its discretion in selecting an imputed $500/hour as reasonable under all the circumstances.
Adequacy of the Explanation and Windfall Analysis
The panel held the district court adequately explained its rationale: it credited counsel’s skill and risk, but found the case not unusually complex, noted counsel’s extension and the Commissioner’s unopposed remand, and emphasized that the hours expended were average. From that, the court reasonably concluded that honoring the full 25% (implying nearly $900/hour) would be a windfall. By awarding fees based on a $500 imputed rate and by expressly reasoning through the reductions, the district court satisfied Rodriquez’s requirement to articulate deductions and reasons.

Impact and Practical Consequences

Tucker will shape § 406(b) practice in several concrete ways within the Sixth Circuit:

Flexible Hayes Comparator
District courts are not confined to a single definition of “standard rate.” Where a party offers no competent proof of prevailing market rates for Social Security work in the relevant market, courts may draw on the EAJA statutory cap and the attorney’s own stated rate as reasonable comparators. Counsel seeking the benefit of Hayes’s per se floor should proactively supply affidavits, surveys, or other credible evidence of prevailing market rates for similar work by similar lawyers in the relevant geographic market.
Effective Hourly Rate as a Primary Focus—But Not Alone
Courts may continue to convert contingency requests into implied hourly rates as a central lens for evaluating reasonableness. Reductions, however, should not rest on the rate differential alone; they must be grounded in case-specific factors—difficulty, character of representation, results, delay, and the risk inherent in contingency work.
Reaffirmed Rebuttable Presumption for 25% Agreements
Rodriquez’s framework remains in force: a 25% contract is not automatic but receives deference. Reductions are appropriate to prevent windfalls or address subpar performance or misconduct. The opinion reinforces that district courts should expressly state deductions and reasons.
Practical Benchmarks in the Eastern District of Kentucky
While not setting a cap, Tucker tacitly validates the common EDKY practice of fees mapping to effective rates in the $500–$700 range in appropriate cases, with the precise figure turning on evidence and case-specific factors. Importantly, the panel affirmed a $500 imputed rate in a case with average hours, straightforward issues, an unopposed remand, and minor delay attributable to counsel.
Record-Building Imperative for Fee Proponents
The decision squarely places the burden on fee applicants to build a robust record if they seek to justify a maximum 25% award or a high implied rate. Submissions should include: affidavits on prevailing market rates, data on similar fee awards, evidence of unusual complexity, proof of heightened litigation risk, and demonstrations that any delays were not attributable to counsel.

Complex Concepts Simplified

EAJA vs. § 406(b) Fees
EAJA fees are paid by the government when its litigation position is not substantially justified. § 406(b) fees are paid out of the claimant’s past-due benefits for court representation and are capped at 25% of those benefits. If both are awarded, the attorney must refund the EAJA fee to the claimant so there is no double recovery.
Contingency Agreements Under § 406(b)
Claimants often agree to pay counsel up to 25% of any past-due benefits. Courts give these agreements deference but retain an independent duty to ensure reasonableness and avoid windfalls.
Effective Hourly Rate (Imputed Rate)
Although § 406(b) is not governed by a strict lodestar method, courts often divide the requested fee by the hours reasonably expended to generate an implied hourly rate. This helps assess whether the contingency fee is disproportionate to the effort and risk involved.
The Hayes “Floor”
Under Hayes, a fee is per se reasonable if its implied hourly rate is less than twice the “standard rate” for such work in the relevant market. If the implied rate is at least twice the standard rate, the fee can still be reasonable, but courts may probe further and reduce it if necessary. Tucker clarifies that “standard rate” is not limited to any one datapoint; it may be informed by the EAJA cap, counsel’s own stated rate, and—when offered—credible evidence of prevailing market rates.
Windfall
A windfall occurs when a fee is disproportionate to the work performed and the risk undertaken—often flagged by unusually large back benefits and relatively modest hours or complexity. Preventing windfalls protects claimants from excessive erosion of their awards.
Standard of Review: “Highly Respectful”
Appellate courts review § 406(b) fee awards for abuse of discretion, a deferential standard. A district court’s fee ruling will be upheld unless it rests on clearly erroneous facts, a legal error, or an incorrect standard.

Practice Pointers

For Claimant’s Counsel
- Submit affidavits and market data establishing prevailing hourly rates for Social Security appeals in the relevant district and for lawyers with comparable experience.
- Document case complexity, contested issues, risk of non-recovery, and any exceptional results that justify a higher award.
- Avoid delays attributable to counsel; explain any necessary extensions.
- Anticipate the court will compute and scrutinize the effective hourly rate; prepare to contextualize it with risk, skill, and outcome evidence.
- If seeking to rely on Hayes’s per se floor, specify and support the “standard rate” with credible record evidence.
For District Courts
- Start with the contingency agreement; then conduct a reasonableness review per Gisbrecht.
- It is permissible to use the implied hourly rate as a primary lens, supplemented by case-specific factors and not as the sole basis for reduction.
- When applying Hayes, identify the comparator(s) used—EAJA cap, counsel’s documented rate, and any evidence of market rates—and explain why they are appropriate on the record.
- Articulate deductions and reasons, particularly when preventing windfalls or when counsel’s conduct or effort level warrants a reduction.

Conclusion

Tucker v. Commissioner of Social Security is a significant, published clarification of § 406(b) fee practice in the Sixth Circuit. It reaffirms the central role of contingency agreements subject to an independent reasonableness check; confirms the continuing vitality of Rodriquez’s rebuttable presumption and Hayes’s per se floor; and, crucially, explains that the “standard rate” under Hayes is not locked to a single metric. In the absence of persuasive market evidence from counsel, district courts may look to the EAJA statutory cap and counsel’s own documented hourly rate as reasonable benchmarks for the Hayes analysis.

The decision encourages evidence-driven fee petitions and equips district courts with a flexible, yet principled, toolkit to prevent windfalls without reverting to a rigid lodestar regime. Practitioners seeking maximum contingency awards should expect to carry the burden of demonstrating prevailing market rates, unusual complexity, and litigation risk sufficient to justify the requested fee. In turn, district courts that explain their reliance on implied rates and case-specific factors will receive the “highly respectful review” Tucker applies here.